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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

January 27, 2014 by Robert Franklin, Esq.

Shared parenting is just. It allows two fit parents to have meaningful parenting time with their children following divorce or separation. Existing statutes that require judges to “pick a winner” result in the removal of one parent, usually the father from the child’s life. When both parents are fit and loving, it is categorically unjust to do that.

Shared parenting is in the best interests of children. Large volumes of social science bear this out as Dr. Linda Nielsen has summarized very nicely and on which I reported in my last two posts. Dr. Edward Kruk has also been at the forefront of academics who have demonstrated the value to children of not losing one parent when the two go their separate ways.

Shared parenting is desired by children. Again, much social science demonstrates this. There has yet to be a survey of children that indicates they generally don’t want a full relationship with each parent or that they think losing one of their parents is a good idea. Several studies show the opposite.

Shared parenting is good for mothers. Not having to be the sole caregiver to her children means that Mom can work, earn and save more if she chooses. It also means she gets a break from the constant demands of the children.

Shared parenting is good for fathers. They suffer terribly when a court shoves them to the sidelines and makes them little more than a source of money for the mother who divorced them. The rate of suicide for men (already three times what it is for women) spikes for fathers following child custody cases.

Shared parenting is good for society generally. Children brought up with good relationships with both parents, even if they’re divorced, get better grades, are less likely to drop out of high school, are less likely to involve themselves in crime or use controlled substances, are more likely to attend college, find it easier to form stable relationships with the opposite sex, etc. Fathers who don’t lose their kids in a divorce demonstrate better emotional health, are less likely to abuse alcohol and drugs, are more likely to be employed and less likely to commit crimes. Social order favors shared parenting.

All of that argues persuasively for shared parenting. All of that is why the movement for shared parenting is not going away. It’s why it will never go away until state legislators stop listening to the family law bars and start paying attention to the social science that frankly demands that children maintain plentiful and meaningful contact with both parents post-divorce. The movement for shared parenting is here to stay until laws are changed and judicial bias overcome so that fathers remain a big part of children’s lives.

Year after year in state after state, shared parenting bills come up for consideration. In essentially every case, they’re opposed by family lawyers who fear the decline in conflict a presumption in the law of equal parenting would result in. That decline would be directly reflected in declining fees for family lawyers who thrive on the fear and loathing engendered when marriages fall apart. Often as not, they’re also opposed by gender feminist groups that would rather see fathers separated from their children than mothers reap the benefits of shared custody.

Still, in a few states, shared parenting has made some headway. In Arizona, Arkansas, Wisconsin and Washington, some form of shared parenting is either mandated by law (assuming parental fitness, of course) or strongly favored. The result, as Dr. Nielsen reports, is a decrease in the divorce rate.

That’s not hard to understand. Some 70% of divorce cases in which children are involved are filed by mothers because they know they’ll keep custody of the children. In states where they’re not certain of that outcome, they’re less willing to rush off to court, and so fewer divorces are filed.

The most recent move toward shared custody comes in the form of SB 74 in South Dakota. Here it is.

It’s far from perfect. Indeed, as fathers’ rights advocate Casey Wilson said, “it won’t change the fact that one parent is awarded custody of children when both parents are capable.” Well, it could do that. The main obstacle to shared parenting comes in the form of judges who (again as Dr. Nielsen reveals) both acknowledge that fathers are treated unfairly in custody cases but continue doing just that because they believe mothers are better parents “by nature.”

Given that bias, there’s little a law can do to force judges to act in the best interests of children. But the South Dakota bill, if enacted, would be a step in the right direction. It would add provisions to the law the lack of which have militated against fathers getting meaningful time with their children.

For example, if one or both parents request joint custody, the judge is required to consider it and make written findings of fact and conclusions of law regarding the best interests of the child.

As is true in most states, the bill sets out several considerations about the parents the judge is required to weigh in deciding custody. One of those is “whether the psychological and emotional needs and the development of the child will suffer due to active contact with, and attention from, both parents…” In other words, the bill would force judges to examine what actually happens when fathers are cut out of their children’s lives.

Likewise, the bill would require judges to consider “whether one parent has denied, without just cause, the child the opportunity for continuing contact with the other parent.” So mothers who interfere with fathers’ access to their children run the risk of losing custody.

“Whether each parent can support the other parent’s relationship with the child,” is another consideration judges will be required to make. Again, parents who don’t encourage the child’s relationship with the other parent will be at risk of losing custody or having the custody arrangement altered by the court.

Importantly, parental alienation of children would become a factor judges have to consider in deciding custody. “Whether a parent has intentionally alienated or interfered with the other parent’s relationship with the child,” is vital to fathers’ ability to maintain relationships with their children. Dr. Nielsen’s analysis shows that mothers are more inclined to engage in alienating behavior than are fathers, so fathers would stand to benefit from a change in the law that explicitly recognizes PA and requires judges to consider evidence of it in custody cases.

Also important for fathers is this required consideration: “Whether a parent has attempted to influence a custody determination by alleging, falsely or without good cause, that the child or the sibling of the child has been subjected to physical or sexual abuse or abuse and neglect…” Again, false allegations of physical and/or sexual abuse are commonly made in child custody proceedings. Social science shows that the great majority of those falsely claiming abuse are mothers. Therefore, fathers have a chance to benefit from that clause of SB 74.

None of this is a panacea. SB 74, even if passed as is, wouldn’t produce a brand new world of shared parenting in South Dakota. At best it would constitute, as Wilson said, “incremental change.” That’s not good enough and the fight for equal rights in family courts will continue.

But what it does do is roll back the bias in family law that so often results in fathers not only losing custody but losing contact with their children altogether. Attitudes about fathers and their value to children have already undergone an enormous change in all parts of the English-speaking world. Social science led the way to that result. Now it, and the unwillingness of fathers to continue their status as second-class citizens in family courts, are leading the way toward sanity in child custody decisions.

We’re not there yet by any means, but bills like SB 74 show (a) we’re winning, (b) how far we’ve come and (c) how far we have to go.

National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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